Denial of Indian Blood Won’t Topple Conviction

(CN) – The Ninth Circuit has affirmed a man’s conviction under the Indian Major Crimes Act, rejecting his claim that he is not an Indian. The en banc court on Tuesday affirmed a three-judge panel’s decision that Damien Zepeda was properly arrested and sentenced on assault and weapons charges under the act, which required the defendant have “a quantum of Indian blood” traceable to a federally recognized tribe and is a member of, or affiliated with, a tribe. The decision revised the test and struck the requirement that Indian blood be traced to a federally recognized tribe. The act trumps tribal sovereignty by allowing federal officials to prosecute serious crimes committed on tribal land. Zepeda was convicted on nine counts and sentenced to 90 years in prison for shooting and seriously wounding a man in a confrontation with Zepeda’s ex-girlfriend on the Ak-Chin reservation in Arizona. At trial, prosecutors presented Zepeda’s enrollment certificate for the Gila River Indian Community to show he should be subjected to the act. It listed Zepeda’s blood degree as one-fourth Pima and one-fourth Tohono O’Odham for a total of one-half Indian blood. In 2013, a three-judge Ninth Circuit panel affirmed Zepeda’s conviction on conspiracy charges, but reversed his conviction on the other eight counts, holding that the government failed to prove Zepada was an Indian. Tuesday’s decision modified the Bruce test, arising from United States v. Bruce, used to determine who is an Indian. The court also held that United States v. Maggi, a 2010 case that updated the Bruce test to require defendant’s blood quantum be traced to a federally recognized tribe, did not apply in this case. “Under Bruce, the governing law at the time of Zepeda’s trial, there was no requirement that an Indian defendant’s blood be traceable to a federally recognized tribe. Relying on Bruce, and not anticipating the yet-undecided Maggi, the government did not present evidence that Zepeda’s Indian blood derived from a member of a federally recognized tribe. However, its undisputed evidence showed conclusively that Zepeda had some quantum of Indian blood. We need not reach the question whether Zepeda is right that the government did not introduce sufficient evidence to satisfy the definition of ‘Indian’ under Maggi, for we are convinced that Maggi was wrongly decided,” U.S. Circuit Judge William Fletcher wrote for the majority. The court restored the basic structure of the Bruce test. “We hold that proof of Indian status under the IMCA requires only two things: (1) proof of some quantum of Indian blood, whether or not that blood derives from a member of a federally recognized tribe, and (2) proof of membership in, or affiliation with, a federally recognized tribe,” the opinion says. The court found that Zepeda’s tribal enrollment certificate and the testimony of his brother about their father’s Indian heritage was enough to establish Zepeda was an Indian at the time of the offenses, and that all his convictions should stand. The decision also rejected Zepeda’s claim that his sentence was unreasonable. In a concurring opinion, U.S. Circuit Judge Alex Kozinski said he would affirm Zepeda’s conviction, but apply the Indian Major Crimes Act to all members of a federally recognized tribe “irrespective of their race.” “The majority’s holding transforms the Indian Major Crimes Act into a creature previously unheard of in federal law: a criminal statute whose application turns on whether a defendant is of a particular race. Damien Zepeda will go to prison for over 90 years because he has ‘Indian blood,’ while an identically situated tribe member with different racial characteristics would have had his indictment dismissed. It’s the most basic tenet of equal protection law that a statute which treats two identically situated individuals differently based solely on an unadorned racial characteristic must be subject to strict scrutiny,” Kozinski wrote. U.S. Circuit Judge Sandra Ikuta also concurred, but disagreed with the Bruce test blood quantum requirement. “In holding that a person is not an Indian unless a federal court has determined that the person has an acceptable Indian ‘blood quantum,’ we disrespect the tribe’s sovereignty by refusing to defer to the tribe’s own determination of its membership rolls. It’s as if we declined to deem a person to be a citizen of France unless that person can prove up a certain quantum of ‘French blood,’ and we declared that adoptees whose biological parents are Italian cannot qualify,” Ikuta wrote. Michele Moretti, Zaputa’s attorney, said she would appeal the decision to the Supreme Court.